The fate of the Deferred Action for Childhood Arrivals — more popularly known by its abbreviation, DACA — is still up in the air, with the State of Texas leading a lawsuit to challenge the lawfulness of the program created by the Obama-Biden administration in 2012. Judge Andrew Hanen presided over a hearing in the case on Tuesday, though Hanen has yet to make a ruling.
Texas and the other plaintiff states filed a motion for summary judgment in October requesting Hanen to set aside DACA and “tailor a remedy that allows for the orderly wind down of the unlawful program.”
They argue that the program, which was created via an executive memorandum, oversteps authority that belongs to Congress and violates the Administrative Procedure Act (APA) that governs the bureaucratic rulemaking process of the federal government.
“[E]ven if the President could grant lawful presence, work authorization, and a pathway to citizenship to 1.5 million people Congress has deemed unlawfully present, the rest of the Nation is due, at the very minimum, the right to first be heard through notice-and-comment rulemaking,” the plaintiffs state in their motion.
Defendant-intervenors in the case, including the Mexican American Legal Defense and Educational Fund (MALDEF) that represents several DACA recipients and the State of New Jersey, make the argument that Texas has no standing because they will not suffer “irreparable harm” if DACA is not set aside.
In MALDEF’s response to Texas’ motion, they noted that in the scenario that Hanen finds the plaintiffs’ arguments persuasive and rules “that DACA is unlawful, it should remand to the agency to exercise its remedial discretion, rather than vacating DACA.”
The lead attorney for Texas countered that if the court finds something unlawful, then it is proper for the program to be set aside, even if it is done so in a way that phases out the program.
DACA was first implemented in 2012 by officials in the Obama-Biden administration and allowed young immigrants residing in the United States illegally who were brought to the country as minors to apply for a renewable, two-year work permit and deferred action on deportation.
“As a general matter, these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them,” wrote then-Secretary of Homeland Security Janet Napolitano in the memorandum.
“However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities,” she added.
In 2014, Texas led a similar lawsuit that challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), a similar program and an expansion of DACA implemented by the Obama-Biden administration in 2014.
Hanen issued a preliminary junction against DAPA, the Fifth Circuit Court of Appeals similarly ruled against the program, and a 4 to 4 tie in the Supreme Court left the Fifth Circuit’s judgment in place.
After the ruling on the expanded program and the change in White House administrations, Texas’ suit against DAPA came to an end.
But after various court rulings that stopped the Trump administration from rescinding DACA, Texas filed the new lawsuit in 2018 to challenge the lawfulness of the original program.
Hanen denied the request for a preliminary injunction against DACA, citing the state’s six-year delay in bringing a suit against the 2012 program.
However, in his order denying the injunction, Hanen lent credence to Texas’ arguments and stated that “the Plaintiff States have shown, as a matter of law, that they are likely to succeed on the merits.”
Since then, the Trump administration has continued its push to end DACA through executive actions itself, but those efforts have been stymied in courts.